477 Neb. Admin. Code, ch. 26, § 004

Current through September 17, 2024

Section 477-26-004 - INCOME

004.01EFFECTIVE DATES. Spousal impoverishment Medicaid program (SIMP) budgeting procedures begin the first month, including a partial month, in which an eligible spouse enters an institutional living arrangement. The budgeting procedures end the first full month that an institutionalized spouse ceases to receive an institutional level of care or when the community spouse no longer meets the definition of a community spouse, whichever occurs first.

004.02ALLOCATION OF INCOME . Only the income of the institutionalized spouse is used to determine whether any cost sharing amount is due to the provider. The income of a community spouse is not considered available to the institutionalized spouse. Some of the income of the institutionalized spouse may be allocated to the community spouse and dependent family members. The amount that may be allocated is determined in accordance with the procedures in this chapter.

004.03DETERMINING OWNERSHIP OF INCOME. All income must be verified to determine the amount of the income and the individual to whom the income is due. Income is considered to be owned by the person legally entitled to receive it. Ownership of income may be appealed.

004.03(A)MULTIPLE OWNERS. When a source of income is payable to more than one party, the following rules apply:

(i) If payment is made payable to both spouses, one-half is considered available to each spouse;

(ii) Income must be divided by the number of payees if payment is made payable to one or both spouses and a third party;

(iii) Only the spouse's proportionate share is considered available to that spouse;

(iv) If income is paid to one spouse and a third party but the verification reveals that the income is intended for both spouses, both spouses must be included in the division to determine the proportionate share; and

(v) If income does not specify either spouse, one-half of the amount is considered available to each spouse.

004.04BUDGETING THE INSTITUTIONALIZED SPOUSE. The budget of the institutionalized spouse is calculated using the procedure below. Only the income of the institutionalized spouse is used to determine whether any cost sharing applies. The institutionalized spouse must be allowed sufficient income to meet their personal needs before determining whether any income is allocated to the community spouse. If the income of the community spouse is not provided or verified then no allocation is allowed. If an allocation for the maintenance needs of the community spouse is calculated, but is not made available to the community spouse, then no deduction is allowed. A deduction for the maintenance of dependent family members is always allowed, even if the income is not made available to those family members. Any amount remaining after deductions are paid to the provider.

004.04(A)BUDGET CALCULATION. The following amounts are deducted from the gross, verified income of the institutionalized spouse in the following order:

(i) The income standard for the appropriate living arrangement. See 477-000-012;

(ii) A fee for a guardian or conservator;

(iii) The amount calculated for the maintenance needs of the community spouse;

(iv) The amount calculated for the maintenance needs of dependent family members; and

(v) Incurred medical expenses allowed under this title.

004.05DETERMINING THE MAINTENANCE ALLOWANCE. The maintenance needs of a spouse or dependent family member are calculated. The calculation is subject to a minimum and maximum amount. See 477-000-012. In comparing income of a spouse or family member, all income is used, even if such income would normally be subject to a deduction or exclusion for Medicaid eligibility. The gross amount of income is used except for self-employment. Adjusted gross income is used for self-employment. The amount calculated for the maintenance needs of a spouse or dependent family member may be appealed.

004.05(A)DETERMINING THE COMMUNITY SPOUSE MAINTENANCE ALLOCATION. A portion of the income of the institutionalized spouse can be allocated to the community spouse when necessary to maintain the living standard of the community spouse. The allocation is subject to a minimum and maximum amount which is adjusted annually. If the community spouse has income in excess of the maximum amount, then no allocation is allowed. If the community spouse has income less than the maximum, then the calculation below is used. If the income of the community spouse is less than the calculated amount, then the institutionalized spouse may allocate income up to the calculated amount. The income of the community spouse is compared to a sum of the following factors:

(i) The minimum maintenance allowance;

(ii) Excess shelter costs, as defined; and

(iii) A standard utility amount.

004.05(B)DETERMINING A DEPENDENT FAMILY MEMBER'S MAINTENANCE ALLOCATION. A portion of the income of the institutionalized spouse will be allocated to assist in the maintenance of dependent family members. The maintenance amount is a sum of the needs of each dependent family member. For each dependent family member, the remaining income of the institutionalized spouse is compared to an amount calculated below. The sum of the needs of each dependent family member is used as the allocated amount. For each dependent family member, calculate the maintenance need amount as follows:

(i) The minimum spousal maintenance amount minus

(ii) The gross amount of income for the dependent family member, and then

(iii) Divide the result by three.

004.05(C)EXCEPTIONS. An allocation above the maximum amount is only allowed under the following circumstances:

(i) A court has ordered the institutionalized spouse to provide more financial support than the calculated maintenance amount. A court order takes precedence over the calculated amount; or

(ii) The family alleges that a need in excess of the calculated amount is needed due to exceptional circumstances resulting in significant financial duress and appeals the calculated amount. The family must show that there are insufficient resources reserved for the community spouse to meet the financial need. If the family prevails on appeal, then an additional amount may be allowed.

477 Neb. Admin. Code, ch. 26, § 004